---

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

 

(1)           NOT REPORTABLE

(2)           OF INTEREST TO OTHER JUDGES

(3)           REVISED.

CASE NO: 80649/17

17/5/2018

 

In the matter between:

 

WESBANK                                                                                                         APPLICANT

 

and

 

LOUIS VAN NIEKERK                                                                                     RESPONDENT

JUDGMENT

COLLIS J:

INTRODUCTION

[1]           This is an opposed application for Summary Judgment.

BACKGROUND

[2]           The Plaintiffs cause of action is based on a written credit agreement entered into between the Plaintiff and the Defendant on 14 December 2014. The Defendant is in breach of the agreement in that he failed to make due and punctual monthly payments to the Plaintiff and as at date of the issue of summons he was in arrears in the sum of R 24 837.18. As a result of the Defendant's failure to pay up the arrears, the Plaintiff has elected to cancel the agreement and to take repossession of the motor vehicle and to claim the difference between the balance outstanding and the amount released from the sale of the motor vehicle.

[3]           At the commencement of the hearing counsel appearing on behalf of the Plaintiff had submitted to the court that the Defendant no longer persisted with his defence on the merits and that the court was only called upon to determine the point in limine as raised by the Defendant. This was confirmed by counsel acting on behalf of the Defendant.

[4]           The point in limine raised by the Defendant was formulated as follows:

 

6.

 

"I deny that this Honourable Court has jurisdiction to entertain the claim of the Applicant on virtue of the following:

6.1         As appears from the agreement annexed to the Plaintiff's Particulars of Claim as annexure B, my domicilium citandi et executandi is indeed my residential address being 22 Kightley Street, Brandfort.

6.2         I submit that I accepted the quotation of instalment sale agreement, in the Free State Province, and furthermore that Brandfort is in the Free State Province;

6.3         I reiterate that I am resident and domiciled in the Free State Province.

 

7

THEREFORE:.

7.1          The agreement and which agreement was allegedly breached, and which forms the cause of action in the Applicant's claim, was concluded in Brandfort, Free State Province; and

7.2          I am not ordinarily resident and/or domiciled within the jurisdiction of this Honourable Court, but reside in Brandfort, Free State Province.

 

8.

WHEREFORE, I humbly pray that the Applicant's claim, should be dismissed on this ground alone."

 

[5]          In paragraph 3 of the Particulars of Claim, it is pleaded by the Plaintiff as follows:

"The Defendant is domiciled within the area of jurisdiction of the above Honourable Court."

 

[6]        Furthermore, in paragraph 4 it is pleaded as follows:

"On 14/12/2015 and at Pretoria a duly authorised representative of the Plaintiff and the Defendant concluded a written credit agreement, a copy of which is annexed hereto, marked 'B'.............. "

 

[7]       Ex facie Annexure 'B' the agreement clearly stipulates that same was signed by the Defendant at Pretoria.

[8]        Having further regard to the agreement itself, it is correct that same reflects the chosen domicilium citandi et executandi address as 22 Kightley Street Brandfort. as a result, it follows that it was incorrect for the plaintiff to have alleged that the Defendant was domiciled within the court's jurisdiction.

[9]       A domicilium citandi is a place chosen by a person where process in judicial proceedings may be served upon such person.[1] If a person chooses a domicilium, the address so chosen must be the person's place of abode within the meaning of the rules of court, which deals with the address where service of the summons should occur. In the present matter the return of service indicates that the summons was indeed served at the chosen domicilium address.[2]

[10]     The service address of the summons is not however the address upon which the Plaintiff relies as the jurisdictional factor which vests this court with the necessary jurisdiction to adjudicate this matter. The jurisdictional factor relied upon by the Plaintiff is the address where the agreement was concluded.

[11]      The Defendant's contention that the agreement was concluded in Brandfort and thus outside of this court's jurisdiction, is simply not supported with the objective fact, if one considers the agreement itself.

[12]     It therefore matters not that the Defendant is resident outside of this court's jurisdiction, or that the Defendant had chosen a domicilium address situated outside of this court's jurisdiction as this is not the jurisdictional factor relied upon by the Plaintiff.

[13]      This court having concluded that this court is vested with jurisdiction it follows that any judgment or order can thus be made by this court.

[14]      In the result the point in limine is dismissed with costs.

[15]      Where a Defendant has failed to disclosed fully the nature and grounds of his defence and the material facts relied upon, as enunciated in Breitenbach v Fiat SA (Edms) Bpk 1972 (2) SA (T), this court will be enjoined to grant summary judgment against the Defendant.

 

ORDER

[16]       In the result the following order is made:

16.1      The Defendant's point in limine is dismissed with costs.

16.2      Summary judgment is entered in favour of the Plaintiff against the Defendant for:

16.2.1  Cancellation of the agreement entered into between the Plaintiff and the Defendant;

16.2.2  The Defendant is ordered to forthwith, return the motor vehicle 2012 FORD RANGER 2.2TDCI XLS 4X4 P/U S/C, Engine Number: QJ2KNCK50220, CHASSIS NUMBER: AFANXXMJ2NCK50220 to the Plaintiff;

16.2.3  The Plaintiff is given leave to approach this court on the same papers duly supplemented for payment of the difference between the balance outstanding and the market value of the vehicle in the event of there being a shortfall after the vehicle has been repossessed and sold or re­ leased and there being a balance outstanding by the Defendant to the Plaintiff;

16.2.4  costs to be taxed on a defended scale.

 

 

 

C. J. COLLIS

JUDGE GAUTENG DIVISION PRETORIA

 

APPEARANCES :

 

FOR APPLICANT:            ADV. J MINNAAR

INSTRUCTED BY:           HAMMOND POLE ATTORNEYS

FOR RESPONDENT:        ADV. L COLLINS

INSTRUCTED BY:           JORDAANS RIJKHEER & PARTNERS

DATE OF HEARING:       10 MAY 2018

DATE OF JUDGMENT:    17 MAY 2018

---